National Labor Relations Board v. RELCO Locomotives, Inc.

764 198, 180, Bell, U.S. v. Harbison

also L,Ed.2d (2009) LABOR RELATIONS NATIONAL 1481, 173 129 S.Ct. BOARD, judgment) Petitioner J., concurring (Thomas, of a interpretation (“Even proper if the v. it ‘is ‘very policy,’ bad a upholds statute second-guess’ province within our LOCOMOTIVES, by picking action’ Congress’ ‘wisdomof INC., Respondent. interpretation preferred our choosing plausi potentially of range among a from Inc., Locomotives, Petitioner inaccurate, interpretations ble, likely Ashcroft, v. (quoting Eldred of a statute.” v. 769, 154 222, 123 S.Ct. 537 U.S. (2003))). especially is Relations This Labor National

L.Ed.2d of a initiation obligor’s Board, Respondent. true “because unilaterally create a also lawsuit would 12-2447, 12-2203, 12-2503. 12-2111, Nos. re not be that would the title cloud on negotiated order or court solved until a Appeals, States Court United Keiran, F.3d at settlement.” Circuit. Eighth added) (emphasis J., dissenting) (Murphy, omitted). (internal marks quotation May 2013. Submitted: attentive Moreover, requires “caution Aug. Filed: the administrative to the views- ness enforce apply entity appointed ap especially

statute,” “deference interpreting process in the

propriate Z,” such unless Regulation

[TILA] “demonstrably ir lead

deference would Credit Ford Motor Co.

rational” results. 555, 565, Milhollin, 100 S.Ct. 444 U.S.

v. Here, (1980). the ad L.Ed.2d with enforc charged agency

ministrative is the Con Regulation TILA and Z

ing (the Bureau Protection

sumer Financial

“Bureau”). Wall Street Dodd-Frank See Act, Protection and Consumer

Reform 1100A(2) (2010). 111-203, § No.

Pub.L. amicus curi weighed

The Bureau has country on in courts around

ae exercises properly of how a borrower

issue see, transaction, loan right to rescind Servs., Mortg. Homestar

e.g., Sherzer (3d Cir.2013) including

707 F.3d 255 — notice is sending argued that

Keiran —and required.

all that is

raised a new challenging issue the Board’s composition and claiming that several members had been appointed violation appointments the recess clause of the United States Constitution. We consoli- dated the argument eases for oral and now address both the labor law issues as well as RELCO’s challenge to the ap- recess pointments. Concluding that substantial supports evidence the Board’s labor law conclusions and that we lack the authority to decide challenge RELCO’s to the recess appointments, grant we appli- NLRB’s cation for enforcement and deny RELCO’s petitions for review of the two NLRB or- ders.

I. Before the court separate are two decisions, NLRB designated here as REL- II, ICO and RELCO each of which con- Damle, Sarang Vijay Department U.S. cerned the termination of four different Justice, Wiese, NLRB, Tyler James ar- employees by company.. RELCO DC, gued, Washington, for Petitioner. builds and refurbishes in locomotives a Starkman, IL, argued, Paul E. Chicago, plant Albia, in located Iowa. RELCO’s (Svetlana brief) Zavin, Respon- on the for management includes Executive Of- Chief. dent. Bachman, ficer Mark Chief Administrative (Mark’s Doug brother),1 Officer Bachman WOLLMAN, MURPHY, Before and Operations Crall, Manager David and Fa- SMITH, Judges. Circuit Benboe, brication Supervisor Cliff who to- MURPHY, Judge. Circuit gether were responsible for most of the terminations at issue in this case. RELCO In two separate National Labor Rela- I involves Jeffrey the terminations of (NLRB) tions proceedings, Board Smith, Dixon, Timothy Kraber, Ronald and (RELCO) Locomotives, Inc. was found to See, Dana while II RELCO addresses the unlawfully discharged have eight total of Baugher, terminations of Mark Charles engaging workers for in protected labor Newton, Pace, Richard Ren- Nicholas activity. The NLRB ordered the workers frew. petitioned reinstated and for enforcement of its orders. petitioned RELCO cross Each evidentiary hearing before the review of each of the two orders. initially presided by After Board was over briefing (ALJ).2 the initial completed, was Judge RELCO Administrative Law Its 1. While both CEO Mark Doug ap- Bachman and Chief refer to Mark. Where Bachman pears, Doug he is identified Administrative Officer both names. Bachman are officers, company Mark was more in involved presided 2. The Honorable William L. Schmidt this case. References to "Bachman” alone I, Geoffrey over RELCO and the Honorable daily basis union cards on a sign Board ees to represented

general counsel em- before, and after work. Other during, was and RELCO during proceedings viewed Smith as In each testified ployees counsel. its own represented by on behalf organizer and visible comprehen- persistent issued cases the ALJ of the campaign. complain- of the union concluding that the opinion sive pro- because of had been terminated ants ap- employee Smith One RELCO ordering that activity and tected labor the union was Jonathan proached about backpay. receive each be reinstated adamantly opposed Graber Graber.4 Act, 29 Relations National Labor See Smith, repeatedly rebuffed to a union and 158(a). I the ALJ § In RELCO U.S.C. a “damn fool” for telling Smith he was agreement nondisclosure also found that a only stopped trying to unionize. Smith or- was unlawful and by RELCO required told him after Graber approaching Graber The NLRB affirmed dered rescinded. opposed to the union implacably he was cases, comment without substantial both A anymore. to discuss it and did not want II and with minor in RELCO conversation, day after that Graber or two I.3 modifications immaterial in- at a Bachman carwash saw CEO surrounding factual circumstances activity. the union formed him about are discussed below. termination each already that he replied Bachman campaign. spoke Graber also aware of the Evidentiary Hearing I A. RELCO the cam- supervisors about to two other any particular paign. naming He denied Jeffrey 1. Smith cam- participating REL- Jeffrey was a welder with Smith disclaimer paign, but the ALJ found this January until his termi- from CO not credible. early In nation in Smith June days spoke after Graber with CEO Several attempted to meet with RELCO Bach- campaign, Bachman about the union to discuss the attendance Mark Bachman May 2009 with failing meeting man called a system pay and a increase. After employees speak to about un- all RELCO arrange meeting, a face to face Smith to several con- he deliv- ions. Bachman first asked lengthy a letter which composed belonged to a union to leave Bach- tractors who supervisor pass his to on to ered to Bach- long speech In an hour discovered a the room. man. In March Smith bring a expressed opposition of man his insignia union for the Brotherhood labor (BRS) RELCO, indicating that would on a train he union Signalmen Railroad ability to layoffs impede and repairing. inquir- He wrote an email result provide pay opportunities raises and other representation, and the union ing about Bachman asked if advancement. then by dispatching organizer Mark responded rose any employees questions. un- had Smith Ciurej. an enthusiastic Smith became agree to a if Bachman would among his coworkers asked proponent ion forming about a employees discussion with employ- his fellow RELCO. He solicited Flynn challenged by RELCO. are presided II. Terence Carter over RELCO See infra Part II. panel I consisted of 3. The NLRB in RELCO Griffin, Hayes, Brian Richard and Sharon Kraber, Timothy confused with 4. Not to be panel in RELCO II consisted of Block. The employee be- discussed another terminated Pearce, Griffin, and Sharon Mark Richard low. validity appointments of Block. The of the Block, well as that of members Griffin and him replied up union. Bachman “shut and sit inform he would be able to return to down.” work on Thursday, time a received voicemail from In ensuing Benboe. Monday using On June Smith conversation, telephone Benboe instructed strip plates torch to from cutting steel report meeting Smith to a at 10 that wearing locomotive frames. He was steel morning. meeting, At the Benboe and tipped required by safety boots as Crall informed they spoken Smith that had policies. Unfortunately cutting torch with Bachman and decided to fire him for sparks created which burned the laces and violation, is, a gross safety for failure binding the stitches the soles of the boots. to wear steel toed boots. Smith claimed replaced To deal with the situation Smith the issue of attendance was never zip the burned laces with ties and fastened Crall, meeting. discussed at the by con- body of the boot to the sole with duct trast, stated that the decision fire Smith tape. supervisor Fabrication Cliff Benboe stemmed from his failure to arrive to work replace demanded Smith the boots. Thursday, on time on supervi- and that the Smith informed Benboe that he could not yet sors come to a-decision about boots, afford new but un- Benboe was the steel toed boots. The ALJ credited Tuesday Wednesday, moved. On Smith’s account of what had occurred at wearing Smith went to work boots without meeting. steel toes. Benboe noticed the boots were different from those Smith had been wear- 2. Ronald Dixon

ing they before asked were steel were, toed. Smith asserted that Ronald Dixon worked as a fabricator at pressed against when Benboe a boot with RELCO from December 2008 to Septem- hammer, he discovered that it did not ber of 2009. Dixon was one of Smith’s have steel toe. Benboe ordered Smith earliest recruits in campaign the union into the break room and told him to wait joined regularly recruiting Smith in other there. terminated, employees. After Smith was leading Dixon became the proponent union Operations Benboe returned with Man- among employees. the RELCO He con- ager David Crall. two informed soliciting tinued sign union get Smith that he would have to steel toed until the day cards he was terminated. boots before he could return to work. Smith, continually approached Like Dixon replied Smith that he would not be able to forming a Jonathan Graber about union acquire new boots until 10 the next morn- and was rebuffed and told he was a “damn ing paycheck. when his wife received her fool.” inquired Smith claims he as to how this

would affect his attendance record since he After Smith had been terminated and already was at the maximum amount of while Dixon of the was leader RELCO discharged tardiness before he would be union, employees favoring organiz- a BRS company policy. under Benboe and Crall Ciurej a page plant er sent five letter to deny the issue of attendance was ever employees responding objec- to anti union raised. Benboe did write an incident re- May speech. tions made in Bachman’s port indicated that Smith would not meeting Bachman then called another returning be until 10 the morning. next July Ciurej’s the end of to to respond

That evening, money up meeting Smith borrowed letter. He followed this with a from his mother to all them not employees imploring law obtain new letter to promises.” boots. Before he could call Benboe to to “fall for the union’s hollow on a ladder. Never- joined working he was from if the He warned union, extremely generous theless, against entire placed up “our he the ladder you that all of package, wage and benefit Ben- the locomotive accordance with negotiated be be- already enjoy, would later, Twenty minutes Bach- boe’s wishes. Company and tween the .union. again man claimed to have seen Dixon completely in essence be chalkboard could edge off the working hanging his .feet with great erased and all of these benefits him Bachman ordered of the locomotive. be talked you already have could wages again off the car and had Benboe escort the par- between about for first tim.e him to the breakroom. Benboe informed 2009, Ciurej planned September In ties.” fired for insubor- Dixon there that he was by handbilling outside respond initially dination. Dixon assumed Benboe Bachman plant. informed RELCO Graber Ben- kidding, but then asked to show Ciurej’s plan. about working where he had been to demon- boe Ciurej’s handbilling, a week after About complied he had with his directive. strate assigned job installing rain Dixon was Dixon out of Benboe refused and escorted spark top arresters on of a guards and plant. Dixon had never done new locomotive. .before, him job this so Benboe instructed Timothy Kraber perform the work. properly on how top Dixon climbed to the of the locomotive began working for Kraber' RELCO instructions in accordance with Benboe’s previ- time in March 2008. He had second Meanwhile, Bachman, work. began ously company worked with the from Jan- Crall, managers having and other were uary July 2007. Kraber had be- When meeting overlooking in a conference room RELCO, gun company his work at claims, Bachman he looked shop floor. cleaning and maintain- paid for the cost window; working out the and saw Dixon In ing employee early uniforms. dangling his feet top of the locomotive with however, began deducting per $36 edge. over the Bachman considered this paycheck employee’s month from each position an unsafe because of the Employees disgruntled, this service. possibility of a fall. Dixon denied that his opposition no manifested itself serious dangling edge off the of the feet were ever REL- began suspect until Kraber Baugher, experi- locomotive. Mark overcharging them. Kraber had CO was fabricator, testified that he had seen enced spoken cleaning to a driver for the service working top Dixon on the of the locomotive charged learned that day hanging and had not seen his feet per cleaning. about month for the event, $34 In Bachman edge.5 over the David Operations Manager instructed that Dixon be ordered off of the Kraber asked locomotive. discrepancy, prom- about this and he Crall it. also noted investigate ised to Kraber then

Benboe testified instructed signed, paper- had never employees top Dixon either to center himself on acknowledging pay work reduction be- a from position the locomotive or ladder deducting cleaning fore RELCO started which to work. Dixon claimed that he part charges paychecks. not reach the of the locomotive from their could terminated, alleg- Baugher ordered reinstated in RELCOII. 5. Mark was later testimony, edly a of this but he was result 4, 2010, Doug practor Bachman called who then referred him to On March a doctor. work, he returned to cleaning to discuss the uniform When Kraber sub- meeting chiropractor mitted notes from the and the brought for the em- He also forms issue. explaining doctor his absence. Benboe to de- ployees sign authorizing and Crall met with Kraber on February cleaning expenses pay. from their At duct to tell him points, that he had fifteen well Doug meeting, challenged Kraber They over limit. RELCO’s also informed being Bachman as to whether RELCO was him that policy change due to the his note charged cleaning less for than the amount chiropractor from the would not accept- Doug Bachman claimed of the deduction. ed. Kraber contested the calculation of not to know the answer. Kraber then points his and said that he would “beat” proposed employees sign that the refuse to them if the issue came before an unem- authorization form until the company ployment hearing. He also informed the information provided about the cost of supervisors that he dealing “wouldn’t be cleaning, and the voted to ac- with this” if the workers had a union. cept proposal. meeting Kraber’s then Kraber spoke supervisor Curt Peterson employees grew became heated as con- day, later again complaining once overcharging vinced RELCO was them. about policy suggesting the attendance employee actively Kraber and another that a union problems. would solve these Bachman, challenged Doug who was also promised Peterson to look into the attend- very upset. controversy ance and attempt to fix it. A on, going While all of this was Kraber later, days few Peterson told Kraber that having issues with his attendance. point total had been to ten reduced begun experiencing prob- Kraber back would provide be reduced six he could near the required lems end 2009 that replace chiroprac- doctor’s note to him to take medical absences. RELCO’s excusing January tor’s note 19 and 20. policy assigned attendance workers Kraber a note from obtained his doctor “points” every for Ac- unexcused absence. submitted to Peterson. Peterson cumulating points more than twelve result- contended that the note illegible so ed in termination. Kraber met with Crall request Kraber called his doctor to anoth- in December 2009 to discuss the number of Instead, er. a nurse from the doctor’s had, points contending that some of his directly office called Peterson and ex- points expunged should be because he had plained the content of the earlier note. submitted written medical excuses. Crall Peterson then told Kraber that the note promised to look into the matter. On De- points sufficed and his expunged. would be 4, 2009, posted cember Mark Bachman While RELCO contends that Peterson had employee memo near the breakroom about bring told Kraber he needed to in another policy. the medical release The memo note, Kraber’s account was corroborated stated that medical notes from a doc- February another witness. On acceptable tor would be ab- excused 2010, Kraber missed work and was as- Kraber, previously sences. who had used points. two attendance sessed Crall told a chiropractor notes from to substantiate points Bachman that Kraber now had 12 absences, his excused claimed he never terminated, and thus could be but Bach- this memo. saw man said he wanted to review Kraber’s Kraber missed work due to his back making any record himself before decision. January time, through January from 2010. Bachman was vacation at the and on days though On the first two Kraber saw a chiro- sometime after Febru- he returned may have quote him that trip on tell $6.20 on a business again left ary he plant to the on After See emailed He returned been inaccurate. March 2. (one meeting about day more, after the he had no fur- representative March 5 once charge) and terminat- cleaning the uniform cleaning company. contact with the ther Kraber on March 8. ed with his day See discussed The next to work had meanwhile returned Kraber he had learned employees what fellow surprised when March 1 and was on day, cleaning vendor. Later that from the Benboe that he learned from week later he by Benboe and Crall See was confronted protested Kraber had been fired. cleaning repre- contact with the about his the attendance had removed Peterson sentative, “inap- terminated for and then for his absences had accumulated points he with the vendor.” propriate interaction Benboe said that January 19 and 20. on initially claimed See had Although RELCO was “final” and termination decision it later dis- cleaning harassed the vendor Kra- building. from the escorted Kraber anoth- covered that See had been confused night called Peterson at his home ber changed its employee. er RELCO then had not been re- why points to ask to position reemployment and offered See. got- claimed he had not moved. Peterson man- speak it would ten around to morning. next When Kraber

agement the agreement 5. The nondisclosure uniform the next morn- returned his work Following dispute, the work uniform spoken if Peterson had ing, he asked Crall agree- modified its nondisclosure provided him that he had repeated any employee to forbid from con- ment to look promised the doctor’s note. Crall tacting its vendors to discuss the cost of matter, failed to contact into the but he agree- uniform maintenance. The revised Crall, Kraber called Kraber. When employee rights to ment also eliminated that Bachman would not reconsid- was told litigation employee recover costs if the could not er his termination because he an enforcement action prevailed in read the doctor’s note. brought by RELCO. Benboe distributed July Dane See warned agreement the new it, they sign if failed employees that began working Dane for RELCO See they “go upstairs” would have to January participated 2009. He employees speak to Bachman.6 Several Doug Bach- meeting March with sign agreement. refused to Benboe cleaning employee man about the cost employees again met with several weeks concluded, meeting uniforms. After the later, the names of those who had read cleaning company contacted the di- See signed agreement, again charged rectly to ask how much they would be sent threatened repre- A customer service for the service. Bachman if refused. a few While See that RELCO was sentative told sign agree- employees still refused uniform. charged per per week See $6.20 ment, there is no evidence that Benboe or repre- then asked the customer service disciplined Bachman ever them quote. email him that In- sentative would stead, way. representative emailed See to terminated, allegedly this testi- was one of the result of

6. Charles Newton activities, protected presented mony and and was who testified about how RELCO other agreement. He was later ordered reinstated in RELCOII. the nondisclosure Findings by Rulings by respect B. the ALJ and ed issue with to See was whether in I

the NLRB RELCO with respect his actions to the work uni- charges protected activity form were un- Smith, Dixon, found that The ALJ NLRA, der the and concluded Kraber, unlawfully and See had all been correctly ALJ determined it was. 158(a). § terminated. See 29 U.S.C. rejected The Board also RELCO’s chal- found that the non- Specifically, ALJ lenge to the credibility ALJ’s terminations discriminatory given reasons for the ter- found no and basis to reverse them. Fi- Dixon, Smith, minations of and Kraber nally, the Board modified the ALJ’s reme- pretexts masking RELCO’s intent dial order to include also order for activity. punish to them for union The public rescission of the nondisclosure given found that the reason for ALJ agreement. inappropriate contact See’s termination — protected with a vendor —was itself activ- II Evidentiary Hearing C. RELCO

ity because it was a natural extension of the concerted action RELCO workers Baugher 1. Mark regard cleaning with to the work uniform expense. The ALJ ordered reinstate- Baugher began Mark working for REL- employees, expungement ment of all four as a fabricator in CO March 2007. REL- negative from their employ- references encouraged, CO require, did not its histories, pay. ment and back fabricators to become certified welders. certified, Baugher was not and he attended The ALJ also found that a nondisclosure meetings signed union and a union card agreement RELCO had distributed to its during the campaign. September On overly broad violated 13, 2010, Baugher supervisor asked his (NLRA). the National Labor Relations Act grant personal day him a off from work. argued While RELCO that the issue was He testify wanted the RELCO I moot because the has company since with- trial, practices unfair labor but he did not agreement, drawn the no the ALJ found reveal that supervisor. information to his evidence that it had been withdrawn supervisor Baugher advised that he ruled that the issue was not moot because only grant day. could him a half presence agreement of the had a sub- chilling ability stantial effect on the day, Later Mark Bachman CEO engage workers concerted action and Operations Manager emailed David Crall required it therefore remediation. He or- prepare and asked him to a reprimand to post public dered RELCO notice to its Baugher wearing for hard hat not employees indicating it had reinstated duty. replied by asking while on Crall Smith, Dixon, Kraber, See, and would details, provide more but Bachman did from interfering refrain with the NLRA occupied them because at that time he was rights employees. of its I. hat hearings with RELCO The hard appealed put following to the which matter was aside until the week, page spoke Baugher affirmed the ALJ’s decision in a two and no one about suspicious timing alleged September order. It noted that the infraction. On pretextual Baugher project manager nature Ben- of RELCO’s termi- asked Cliff strong day. nation decisions were evidence boe for vacation When Benboe hostility expressed approve to unionization was the true rea- doubt that he could Smith, notice, firing Baugher son for the Dixon and on such short revealed REL- only disput- subpoenaed Kraber. It also observed that that he had been in the “Oh, years. Baugher given was a “satisfacto- I replied you’re CO case. Benboe areas, in an “exceeds ry” rating and a call to sixteen placed in this too?” involved one, “below ex- expectations” rating and granted then time Baugher was Crall. eight. Baugher’s “growth hearing. pectations” at the ALJ appear testify and employee “per- was rated potential” RELCO at the as Baugher against testified term, plateau.” This which the and contradicted formance hearing September on something of a misno- Dixon had been ALJ described Bachman’s claim that mer, meant that RELCO believed a railcar with his feet working top on of job Baugher for had “learned basic skills and present Bachman was dangling. actively working and on knowledge [was] and read his related Baugher’s testimony knowledge.” and It dif- refining that skill statement and affidavit. oddly “perform- named fers from the also union at RELCO was held The election rating, negative which is a peaking” ance majority employ- on October and a indicating employee assessment forming a union. Six against ees voted for an performing has similar tasks been working a days Baugher was later while improvement or period extended without employee, with another locomotive or her expand desire to his skill set. train. The placed flag a blue on the blue Baugher indicates indicated that had not flag safety precaution is a which Crall joining being company that a train is serviced. bettered himself since employees him safety prohibit moving goals and set which included ob- RELCO rules removing flag taining welding keeping train before the his certificate and or organized. Bachman placed worker who it can be located. his work area While flag Baugher given claimed that was a 60 to 90 Baugher neglected to remove shift, personnel day welding the end of RELCO deadline to obtain his certifi- his cate, him. attempted unsuccessfully to locate the ALJ discredited assertion verifying that the loco- deadline had communi- checking After and found no been clear, Baugher welding re- took the personnel motive was RELCO cated. certifica- early January, flag. Baugher pass. moved the blue discovered tion test but did not test, in flag missing morning part his blue was the next He unable to retake the and informed Benboe about it. On No- because he could not find times when both (who suspended Baugher vember 1 two he and Benboe was to oversee the test) days proba- Baugher’s him on available. After pay placed without test, tion, citing manager spoke both the hard hat incident on failed no RELCO flag any incident on about or other issue September 13 and the blue certification relat- review, disciplinary report ing performance also to his nor indicate October 26. Baugher smoking Baugh- claimed that been dissatisfaction his work. had with working Sep- assigned welding while in an enclosed car on er continued to be poor early Al- loitering, exhibiting projections throughout tember though managers performance. work asserted difficulty finding work for non early Baugher In December asked Baugher’s position, certified welders in be lifted. probation Crall when his would testimony. ALJ discredited that did gave vague response Crall which identify any March Benboe and termi- specific steps Baugher should On Crall Baugher. given lift At The reason probation. take to the end nated perform- improve- that he had not made sufficient Baugher the month received Crall, identified in his per- ance review from his first in several ments on the areas above, As a majority Benboe the election. noted Baugher review. asked formance against unionizing. Baugher’s voted any problems with if he had he and Benboe answered did performance, Newton received a work order to create he Baugher that had not. Benboe told headlight a rear a train for cab on Novem- being termi- Baugher was been informed ber He clarification of sought 29. the At a half hour earlier. only nated Cronin, supervisor. work order from his hearing, Crall testified that unemployment suggested headlight Cronin that he use a given the of REL- Baugher was until end compari- in the shop located elsewhere for complete his quarter welding to CO’s first over to son. Newton then walked the that Baugher testified this certification. returned, headlight of that and location any first he heard of such was the had passing along way. twice Crall Crall deadline. doing, asked Newton what he was and process he was in the replied

Newton 2. Charles Newton Later, building headlight. a Cronin being warned Newton that he was a began working as fa-

Charles Newton and “watched” should walk around in 2008. Newton at- bricator for RELCO anymore. replied that he had Newton super- meetings and told his tended union a cab as inspecting light sug- been the unionization visor Jim Cronin gested by him he Cronin. Cronin warned arose from what New- campaign probably careful, you.” they’re watching “be should company’s rough ton characterized as Newton was tactics towards its workers. day, a Later same coworker asked testify during to the REL- also scheduled bending Newton to assist him in a remote practices hearing. I labor Crall CO unfair employees commonly ap- box. RELCO approached shortly Newton before the proached directly one another for assis- speak and if he would to hearing asked tance if a not around. foreman was New- attorney about his involvement RELCO’s agreed get ton to and walked to his help in the and he address in case what would walking gloves. work Benboe saw Newton testimony. agreed and his Newton con- and doing. asked what he was Newton attorney versed with both RELCO’s and coworker, was a helping told him he and five approximately Crall for minutes. he replied walking Benboe was around too much. When Newton offered Sep- I on Newton testified steps piece paper, his on document company’s tember 15 about nondisclo- At drop told him to the issue. Benboe warnings that em- agreement sure and shift, Cronin end of Newton’s handed sign it would ployees who refused warning alleged which he had Newton speak with Bachman. Newton de- sent to stating unproductive been and seeing nied memo RELCO claimed disciplin- will result in “further occurrence posted rescinding agreement. Bach- action, ary up including to and termi- present man in the courtroom for Newton had never before been nation.” opportu- testimony Newton’s disciplined by or told needed nity to review his statement and affidavit. productivity. to increase his Newton was also an observer on behalf of In Newton subsequent gave union December of 2010 Crall during union capacity performance In that his first review several election October Crall, years. The that Newton’s meeting Newton attended a with review stated agent unacceptable and that he supervisor, and an NLRB attendance was another attitude, expectations” vol- regarding procedures during be used “below work, acceptable meeting ume of walked to his unit asked a coworker goals deadlines. “What’s this I about RELCO set Newton hear Chris?” The attendance, repeated coworker the rumor that improve obtain his weld- Kendall certificate, stay had been fired and wondered if it ing on task. It had been also absenteeism, due to since Kendall had growth potential rated Newton’s “per- previous been off day work the plateau,” play formance same Baugher level Santa Claus at his child’s school. challenged had received. Newton REL- record, CO’s tabulation of his attendance Soon the rumor Kendall had been eventually and Crall conceded error and “fired for Santa playing spread Claus” agreed accept- Newton’s attendance was through shop. the RELCO Renfrew challenged able. Newton ap- also Crall’s heard the rumor from Pace and another praisal of his abilities welding and his atti- Pace, employee and like Renfrew was sur- any examples tude. Crall did not give of prised apparent to hear Kendall’s dis- of Newton’s alleged deficiencies these ar- charge. Pace and Renfrew shared the eas. regarded sentiment that if well employee a like go, any Kendall could be let of one Most of work in early Newton’s them could At be next. lunch RELCO nature; was refurbishing and electrical in workers talk continued to about Kendall’s welding he did not do any during that Pace, Renfrew, status. many and others period. complimented Newton was for his expressed concerns that it was to wrong work, however, did not any and he receive fire Kendall and discharge worried his negative feedback or criticism at point signaled in the operation. cutbacks following performance his 2010 review. Nonetheless, Meanwhile, Crall terminated Newton on actually Kendall was at work March productivity 2011 for low with- and reported unaware of his termination. providing out any examples poor per- He had been assigned “paint blast” unproductive formance or time. Newton’s room day, which was isolated from the discharge letter he put claimed had been plant. remainder of the Starting at probation on his following per- December around 9 AM began Kendall to receive text review, formance but the ALJ messages discredited employees from other asking this assertion as unsupported any evi- he had been He replied fired. that that dence. was continued, incorrect. messages Text

including one from Pace. Kendall respond- &3 Richard Pace and Nicholas Ren- fired, ed that if he had been RELCO was “playing me, a a joke

frew hell of cruel sticking me over here blast.” Both Richard began working Pace for REL- Pace and eventually Renfrew learned that inCO and Nicholas Renfrew began Kendall had not been fired. Renfrew in 2006. attending After an employee made a point to tell other employees that meeting morning on the of December the rumor was erroneous and that Kendall 2010, Pace overheard conversation be- had actually working in paint been tween two other employees spec- who were blast room. ulating that employee Chris Kendall had been fired. Pace recalled he had not day, Towards the end of the Kendall’s seen Kendall morning at the meeting, supervisor that he agitated noticed looked surprised he hear Kendall and had asked what wrong. Kendall re- fired been plied, fired, because was known as “If I’m to be I going would like good employee and a hard worker. Pace for a supervisor to be the one to tell me.” Kendall, warning given “If and performance who told him review met with Crall unlawful and that the me, get it over Newton were disci- to fire let’s you’re going Baugher in November had pline been he was not assured Kendall with.” Crall his testimony increased retaliation for fired, receiving performance being He noted that before union. both review, getting a raise. in fact was and Baugher Newton and treated differ- home calmed down went Kendall then than ently other without union Ken- told Bachman that from work. Crall connections who had been accused of simi- upset by the rumors of dall been He lar infractions. ordered reinstatement requested then termination. Bachman backpay for all four workers re- messages he save the text Kendall disciplinary neg- actions scission look at them. Bachman could received so performance given Baugh- ative reviews met with next morn- Bachman Kendall er and Newton. messages. the text ing and asked see since Kendall was reluctant to show them April NLRB affirmed The .on resolved, the matter he considered comment. without substantial While agreed. he Bachman told Ken- eventually objected RELCO had to the ALJ’s credi- doing job a again good that he dall determinations, bility the Board did not also not be fired. Bachman and would any them. reversing find basis for The take matter. he would care of the said also I Board noted while RELCO violations, with labor law it dealt similar following met with Pace the Bachman in ruling had not relied on that decision morning asked about the rumors and II. the issues in RELCO Pace asserted Kendall’s termination. rumor, the shop the entire knew of of the NLRB Appeal E. RELCO’s deci- he sent a text to Kendall acknowledged Application sion and the NLRB’s for asking if it was true. He did so because Enforcement a friend and he wanted Kendall was petitions RELCO for review of the know if the rumors true. Bachman were decisions, applies and the NLRB NLRB’s mali- charged having spread Pace with of its order. In both for enforcement about livelihood and cious rumor Kendall’s I II the RELCO Board him. immediately terminated Bachman findings and adopted the ALJ’s factual had then met with Renfrew and a similar employees conclusions of law the explained that conversation. Renfrew unlawfully little or no terminated with false, he rumor once learned that the Thus, are while we review- modification. by stop spread tried rumor’s he the decision, ing spe- Board’s most told telling employees. Bachman other in each case legal findings factual and cific destroyed potentially Renfrew that were, by made in the first instance by spreading malicious ru- Kendall’s life analysis each legal ALJ. The factual mors. then terminated Renfrew. He unique, termination is and we employee’s individually below. address them by Findings by Rulings D. the ALJ and the NLRB in II by reviewing decision When NLRB; deference to great four “we afford employees The ALJ decided that all the ALJ’s find unlawfully 29 the Board’s affirmation of had been terminated. See yElec., 158(a) § Inc. against ings.” Town & (barring U.S.C. retaliation Countr (8th Cir.1997). NLRB, labor engaging protected for if “has order activity). negative will enforce the Board’s He also found We applied the correctly protected law its factual same action absent the activity.” MDI, findings supported by are substantial evi- 175 F.3d 625. The existence of a whole, record dence on the as a even we nondiscriminatory rationale for the termi- might have reached a different decision nation enough is not this affir- establish had the matter before us de novo.” been mative defense. Hicks & Hicksgas, Oils Id. (1989). 293 NLRB In order to burden, satisfy employer’s the ratio- normally employer While is free only nale a potential partial cannot or an at discharge employee will or termination, reason for the it must be “the reason, no the National Labor Relations justification.” Rockline, 412 F.3d at 970 Act, provides § seq., pro 29 U.S.G. 151 et (emphasis original). tections workers who seek to form a union engage or otherwise concerted Wright analysis Line is 158(a). § labor ap activities. Id. at In necessary employer’s if the stated ratio praising challenge employee’s to an ter activity nale for termination is not protect by allegedly protected mination caused la by ed If NLRA. the employer’s stated activity, bor question whether the reason an activity protected by is itself employee’s termination was motivated statute, Wright analysis Line does not the protected activity. Concepts & De apply employer because has conceded (8th signs v. that its motive was Joseph’s unlawful. St. Cir.1996). question Motivation “is a of fact (2001). Hospital, 337 NLRB 95 may both be inferred from direct and circumstantial evidence.” Id. 1. Jeffrey Smith Wright analy The so called Line Applying prima the facie Wright applied sis is when an employer articulates test, Line the Board that REL- contends a facially legitimate for reason its termi CO knew that Smith was a union leader decision, nation but that motive is disput and this fact awas factor in motivating his Line, ed. Wright See NLRB 1083 termination. RELCO in opposi asserts (1980). The initial Wright Line burden is tion that there is no substantial evidence on general the Board’s counsel establish the company was of aware Smith’s employee’s protected that the activity “was activities, union much it less that harbored a motivating factor” in or her eventual activity animus towards such or that its termination. NLRB v. MDI Commer. decision to terminate Smith was motivated (8th Servs., Cir.1999). F.3d by it. prima elements of this facie case are “(1) employee the was engaged protect reviewing record, After the we conclude (2) activity; employer ed ... knew of substantial supports evidence (3) the employee’s protected activity; and position. Board’s There is considerable employer ... it acted as did on the circumstantial evidence that RELCO’s basis of anti-union animus.” NLRB v. senior management was aware of Smith’s Indus., (8th Rockline union activities. Bachman had indicated Cir.2005) FiveCAP, (quoting Inc. v. he was of campaign aware the union at (6th Cir.2002)) 294 F.3d RELCO, of which Smith was the acknowl- original). (ellipses edged spoke leader. Smith in favor up of

If general forming May meeting counsel meets this bur- union 15th den, conduct “the is unlawful unless and was up told Bachman to “shut employer proves it would have taken the sit down.” The ALJ found that Jonathan from “bargain was akin to a scratch” informing Bachman had been Graber courts have found un campaign and that Gra- threat which to be the union about See, e.g., Mfg. revealed the lawful. NLRB v. Hitchiner that he had denial ber’s (8th Cir.1980) Co., 1110, 1113 (per to Bachman pro names of union curiam). also Graber admitted was not credible. manage- with

that he initiated discussions argues that Bachman’s state- occasions to inform it on ment several be ments cannot considered several union activities. about it reasons. First contends Bachman’s telling Bach- Although denied Graber as evidence of anti speech cannot used in the involved union man that Smith was 8(c) union animus because Section of movement, ALJ discredited Graber’s the “expression] NLRA of prevents ample evidence assertion based views, or argument, opinion” being from The ALJ noted that Graber record. prac- used as of an unfair labor “evidence union, avowedly anti and bore a openly expression tice ... if such contains no partic- and Dixon in against grudge Smith reprisal promise threat or force or of of in their overbearing efforts being ular for 158(c). § U.S.C. dis- benefit.” 29 We keyAt mo- join him a union. get agree. respect “chalk- With to RELCO’s also initiated discussions ments Graber comment, agree with the ALJ board” we about management senior with “bargain it was akin to a from campaign keep union abreast as a qualify scratch” threat that would ALJ As the ob- ongoing developments. Similarly, “threat reprisal.” Bachman’s served, pro- enjoyed a “meteoric Graber up and demand that Smith “shut sit down” with position gression a coveted “view[], expression of a hardly events this case un- company while the argument, or could be consid- opinion,” but displayed guarded Graber also folded.” against reprisal a threat of Smith ered as testifying in this case which manner when if he to continue to advocate for the were hiding he was the ALJ that indicated union RELCO had indicated it termi- since conclude that there is information. We for nates “insubordination.” supporting finding the substantial evidence management knowledge RELCO Moreover, the NLRB has consis of Smith’s union -activities. tently antiunion employer’s held that “an lawful, comments, may while evidence that themselves There is also substantial as background be considered animus towards un- nevertheless RELCO harbored un facility. employees’ animus toward Upon learning in its evidence of campaign ion Foley Plumbing called a ion activities.” Tim campaign, Bachman meet- of (2001). Serv., except 337 NLRB employees, all for Inc. ing regular with 8(c) designed employ to shield requested who he leave Section union contractors solely on an hour ers claims that rest long room. then delivered an from He that it employer’s communication disfavors negative out the influence speech pointing NLRB v. Pack out favor unionization. See Gissel spoke of unions. Smith When 575, 618, unions, Co., 89 S.Ct. ing he 395 U.S. up Bachman demanded “shut of (1969). mean That does not down,” hostility. L.Ed.2d 547 and sit a clear indicator con be excised when that Bach- that these remarks agree also with ALJ We evinced employer a whether the has inviting sidering man’s to the effect that comment Otherwise, Section hostility for to unions. union to would allow RELCO 8(c) employ- effectively prevent an completely ... be erased” would [to] “chalkboard curiam), hostility (per suspicious statement of to unions from timing er’s of a being proof discharge, used as such attitude. id. All of these factors are present open here. RELCO demonstrated asserts that Bachman’s also unions, hostility to and Smith’s termination be statements cannot considered because came publicly a mere one month after he him, by by Smith was not fired Benboe challenged speech. Bachman’s anti union and Crall. It cites Cardenas v. AT & T reasons,” “shifting As for has con- (8th Cir.2001), Corp., 245 F.3d to ar- tinually asserting vacillated between gue by that “remarks made non-decision- Smith for a safety was terminated violation connection to alleged makers with no (not shoes) wearing steel toed for at- employment sup- adverse decision cannot tendance issues. The ALJ found neither port pretext.” reasonable inference story plausible. misplaced. Id. at 1000. reliance is This holding was a Title VII Cardenas case management After found he was wear- supervisors racial bias of involved ing boot, a defective Smith told return, disputed employment decision could pair to work with a of steel toed imputed not be to those who did make shoes; it was after he complied that Id. it may adverse decision. While he fired. The ALJ also found that unreasonable to assume that an employee Smith had been told come into work at is speaking company on behalf of the when day AM the next his supervisors and sentiments, expresses or she racist that Crall was not in claiming credible same is not true the labor context. To Smith’s attendance was stated reason contrary, eminently “it is reasonable to his termination. pre- This evidence also high-level corporate assume that managers vented RELCO from an affir- establishing speak on the company behalf of when defense, required mative showing which express animus.” Parsippany anti-union would have Smith terminated even without Mgmt. Hotel Co. 99 F.3d engaging protected in any activity. (D.C.Cir.1996). Bachman, When the The Board’s conclusion that RELCO’s company CEO, openly overtly ex- pretextual stated motives provides pressed to all RELCO employees his hos- reject substantial reason to its affirmative unions, tility towards it is reasonable to Products, defense. See York Inc. v. announcing assume that he was the policy NLRB, (8th Cir.1989). viewpoint may RELCO. This then rea- accordingly We conclude that substantial sonably imputed to manag- other senior supports evidence the Board’s decision ers such as and Benboe Crall. that unlawfully Smith was terminated due protected to his labor activities.

Substantial supports evidence also the finding Board’s that anti RELCO’s union 2. Ronald Dixon outlook was the cause of Smith’s termi- nation, satisfying thus the final element of supports Substantial evidence also Wright prima Line’s facie burden. position Cir- the Board’s that Dixon was termi cumstantial evidence which support can an nated because of his union activities. See unlawful motive includes “implausible Concepts ... & 101 Designs, F.3d at 1245. false, or shifting reasons” for a fired, termi- After Smith was Dixon over took as nation, NLRB, RELCO, Hall v. F.2d union lead advocate at and (8th Cir.1991), employer’s hostility to- substantial REL- evidence indicates that union, Inn, ward the Lemon Drop Inc. v. CO Significantly, was aware of his role. (8th Cir.1985) 752 F.2d Graber had the same motives to tell REL- (8th Cir.2005). Corp., Dixon he did management about as CO thus was entitled to discredit Bach- Smith, the Board was The ALJ inform assertion that he believed Dixon was RELCO had knowl- man’s that to infer entitled behaving insubordinately. present- Dixon Simi- activities. edge protected of Dixon’s hostility actually that had not disre- ed evidence he of RELCO’s larly, evidence instructions, this garded Dixon’s Bachman’s is relevant to toward unionization that the ALJ’s determination The nexus between buttressed termination well. im- conflicting claim was either activity his termi- Bachman’s protected Dixon’s outright or an fabrication. See plausible his termi- stronger, is even since nation Hall, perception F.2d Dixon’s days after union at 688. just came a few nation supported by the fact that imme- REL- is further Ciurej handbilled outside organizer by his high pro diately summary after termination profile was a plant. This CO’s Benboe, he offered to show Benboe his while Dixon was action taken union activity verify safety that the ladder pro workspace union acknowledged leader RELCO, Bachman in- re- properly placed, had been Benboe which was about supports fused. This the inference that by Graber. This satis- advance formed management looking was for an initial Line burden to dem- RELCO Wright fies sympa- a known union engaged excuse terminate employee that the was onstrate supports knew thizer. Substantial evidence activity, employer protected that Dixon’s termi- activity; Board’s determination protected this anti union hostili- by anti-union nation motivated was motivated termination could not demonstrate ty. Since RELCO animus. actually believed Dixon was that Bachman Line, now Wright burden Under insubordinate, that RELCO it follows have to show would shifts also not demonstrate insubordination could of, its anti regardless terminated Dixon justification” for his termination. was “the reason union animus. RELCO’s stated Rockline, (emphasis origi- at 970 insu- terminating he was Dixon nal). listen to by allegedly refusing to bordinate his dangle he not Bachman’s order that Timothy Kraber There is of the railcar. feet off side pretext. this was a evidence ample sympa was a union While Kraber his feet ever dan- Dixon denied that Smith, Dixon and the circum thizer like with, alone begin off the let gling car closely his termination are more stances of reprimanded, and he initially after he was involving the work protests related to on the placed ladder claimed union activities. issues for his uniform than he had instructed precisely car where been formally part of the unioniza Though Dixon’s account was corrobo- by Benboe. by to campaign, attempts workers tion the worker, who by Baugher, rated another cleaning uniform the remove RELCO feet never saw Dixon’s testified he to their or at least charge paychecks, to the dangling edge off the railcar. was not over company the ensure service, a “con them for the is charging that it not mat- responds RELCO does by 7 of activity” in Section really protected certed engaged Dixon was ter whether § not, (protecting 29 157 NLRA. U.S.C. safety claimed violation or the the in rights engage “concerted employees’ was that he whether Bachman believed ... aid mutual disregard- purpose activities for the insubordinately and that had T protection”). v. AT & or instructions. See Johnson ed Products, Inc., (7th 957, dispute There is no that-RELCO knew 856 F.2d Cir. 1988). in that Kraber the work uni- was involved in may answer this case form the first to express issue. He was straightforward. Prior to public Kraber’s management, concerns about it to RELCO challenge management to RELCO about and he was a in the participant vocal meet- uniforms, company may not have ing with where Doug Bachman RELCO him, planning been to' terminate or at least collectively expressed workers their dis- had been planning investigate his claim content about the uniform issues. There points that his attendance should have is also substantial evidence RELCO expunged. been unhappy management was with Kraber’s argues that evidence that Pe activity. concerted At the March 4 meet- terson already expunged had Kra- some of ing, challenged Kraber RELCO’s work points ber’s attendance and decided his uniform his policy and stated belief that acceptable doctor’s note was was inadmis company overcharging employ- its hearsay sible it because came from Kraber ees for cleaning the uniforms. While and a witness to conversation with Doug ultimately agreed Bachman with Peterson. The responds NLRB that Pe maintain suggestion Kraber’s the status terson’s statement admissible under quo until RELCO was able to provide F.R.E. 801(d)(2)(D) as an admission information, detailed meeting cost be- against concerning interest a matter within increasingly came after heated his com- scope agency. Peterson’s It also Doug ments. Bachman ap- Thereafter points out that the Federal Rules of Evi greatly at the peared agitated insinuations by only advisory dence are proceed Board company Kraber and others ings, 160(b); § money effect from see 29 taking its work- U.S.C. NLRB v. (8th 115, 117 ers. Addison Corp., Shoe 450 F.2d Cir.1971), hearsay where is admitted Substantial exists supporting evidence probative and corroborated other evi finding the Board’s that Kraber was termi- Indus., Inc., dence. RC Aluminum nated because of his acrimonious interac- (2004). NLRB rejoins tion with Doug Bachman connection general counsel never established the protected activity. with RELCO man- hearsay foundation for this and that agement was aware there was an ongoing Bachman, Peterson, authority dispute many about how points attendance . making policy attendance decisions See possessed. Kraber Even when compa- Corp., Xomox ny’s having records him as showed fifteen Mitroff (6th Cir.1986). points, permitted him to continue work- ing until get he was some points able evidentiary We review deci

expunged. Kraber reportedly When discretion, sions for abuse of Bennett v. point reached the twelve again threshold (8th Corp., Nucor February Cir. Bachman once more de- 2011). Here, layed him until ALJ had sufficient terminating company grounds testimony. to admit opportunity had the to examine Peterson’s Kraber’s Peterson closely, possessed record more no at least apparent doubt au because he thority knew points expunge some of those were disputed. points attendance RELCO he question posed raises a had done so for elsewhere Kraber once before. by Moreover, the Seventh “If company] Circuit: even if Peterson [the could not alter intent, himself, acted with then retaliatory why points did attendance there is little delay it ... ?” dispute NLRB Stor-Rite acting Metal that he was within au- his

785 information to Dane thority presented when he See at about Kra- managers RELCO senior Dane was terminated on See March with note or Peterson’s conversation ber’s a inappropriate contact with vendor. if it Finally office. even the doctor’s that ALJ found this contact was itself hearsay, was corrob- Peterson’s statement protected activity. Consequently, is thus by other evidence and ad- orated Wright shifting Line burden framework proceeding. in an administrative analysis only missible since apply, does not that Aluminum, at 940. turns necessary RC 343 NLRB where the case on the See

employer’s Joseph’s Hos- motivation. St. prevail pital, employ- if were to NLRB at Even RELCO 95. When encompasses pro- er’s admitted motivation evidentiary that challenge, on this would activity, employer tected in labor has dispose question of the actual before violation, effect admitted NLRA is not question the Board. The relevant there need proceed is no with many points how attendance Kraber “offi Wright analysis. challenges Line time, cially” any given had at but whether decision two grounds. the Board’s Kraber Bachman’s decision fire instead First, that argues it See’s discussion with investigating of his unexcused absences not protect- the work uniform was vendor by caused Kraber’s concert protected was activity ed because it was not “concerted” activity. Bachman that Kraber’s ed knew action. It contends that See’s decision dispute, and attendance record was under “solitary” na- contact the vendor was in appeared willing investigate issue he ture, approval with the other not done of right up challenged until Kraber broth Second, that ac- employees. it claims At uniform that er about the work issues. tual for See’s termination was reason cooperation immediately point Bachman’s vendor, a belief had harassed RELCO’s ceased, and Kraber was terminated. permitted and that a termination is such unwillingness Bachman’s to consider the part even if the harassment occurs. conjunc provided, doctor’s note Kraber activity. protected concerted with confirmed the having tion Peterson supports Substantial evidence note, allegedly illegible of the fur content conclusion that See’s contact Board’s supports the termi finding ther that was Ac with the vendor concerted action. nation decision motivated least “engaged tion is when it is “concerted” protected activity. part Kraber’s authority employ of other with or on the delay that argues from ees, solely by and on behalf of the and not February 26 to March is attributable Industries, employee Meyers himself.” during only to Bachman’s absence much of (1984) Inc., {Meyers 268 NLRB period. rejected The ALJ that expla- I). indi Such action can include nation, however, after noting Bach- a “represents either vidual man case while actively discussed Kraber’s concerted activities continuation earlier away he was RELCO terminated outgrowth of concerted activi logical or ” (Dane See) during employee another Exploration Producing & ties. Mobil relating time for actions period (5th same NLRB, U.S., Inc. v. dispute. omitted). same uniform The ALJ Cir.1999) work (quotation See also justification Hotel, this determined Inc. v. JCR Cir.2003). (8th Thus, There is substantial evidence to even action “sham.” a lis- speaker support findings. which “involves these if did qualify actually engage tener” can as concerted action “it concedes that See not in group some relation to action in the the abusive conduct for which he was had Industries, Meyers terminated, argument employees.” provide interest the its does not (1986) ., a safe id. 281 NLRB harbor. See Inc . II) (Meyers does not dispute RELCO 5. Mark Baugher employees’ of concern expression

that cleaning charges the uniform at the about Baugher’s testimony before the meeting activity. concerted March was activity NLRB in I protected RELCO is vendor See’s discussion with the came la 158(a)(4). § under the NLRA. 29 U.S.C. that was on the evening ter and exact The Board that about found RELCO knew record, same issue. On this substantial testimony this that it motivating was a ALJ’s supports finding the that evidence company’s factor in the decision to disci call was a See’s the vendor continuation pline eventually him, discharge thus the employ of the concerted action other satisfying the facie Line prima Wright the engaged ees had in at March meet burden. contends that sec RELCO ing. ond and third of the Line Wright elements test are not met because it it did claims alternatively contends Baugher not know had testified RELCO actually discharged it that See it because I testimony and that this did not motivate believed he had rude and harassing been their decision to terminate him. employer to the vendor. An can terminate employee or for rude abusive behavior first can contends that it during even that behavior occurs not pro proven Baugher that it knew that (or Newton) College tected concerted action. Carleton protected were involved in (8th v. activity 230 F.3d 1080-81 fact despite the was Bachman Cir.2000). present RELCO now concedes that it hearing they the NLRB where confused another employee See with testified. argues It admis ALJ’s actually employ transcripts See was not sion of “the of the I [RELCO ] allegedly' ee who had harassed the proceedings vendor. for the sole purpose [was] It claims it showing however that cannot be ground liable animus” and that this was under the NLRA if admittedly impermissible. this mistak specifically The ALJ de en belief was the actual hearing motivation for clined to transcripts use as Johnson, proof animus, See’s termination. See however, of anti union even at 762. argument though While RELCO’s could have. See NLRB Lar- could (8th Midwest, be validated in a Z-Boy situation where the com Cir.2004) (“The pany’s stated motive for Board generally may rely termination neutral, Supreme upon, of, Court has declined take notice back and use as ground extend this safe harbor findings circumstances and decisions in makes cases,” where stated motivation was “an al long other not so as are act of leged misconduct the course of “the sole its basis for decision on motiva matter.”). [protected] activity.” NLRB v. Burnup & tion in a subsequent The ALJ Sims, Inc., 21, 23, 171, 13 379 U.S. transcripts' simply S.Ct. used the to show (1964). (and L.Ed.2d 1 circumstances, In such Bachman that Baugher was aware Newton) long so employee was not “in fact at the hearing testified misconduct,” guilty of that employer’s their testimony had been adverse to his contrary interests, honest belief to purpose showing does not ex empt liability. testimony from Id. Since RELCO that the was true. There

787 pur- Dynamics Corp., them that tion. admitting for NLRB no error (1989). The ALJ also discredited pose. Baugher that RELCO’s assertion was ter- argues next that there RELCO minated he a welding because lacked cer- that the indicating evidence no substantial employ- tificate. He noted that four other any animus towards company harbored lacked welding ees who certificates had not evi testimony. Circumstantial Baugher’s discharged placed probation on for been or a determination of supports which dence reason, Baugher given that was never and unlawful motivation includes animus ultimatum to obtain certifícate or timing, given false reasons “suspicious terminated, there no evi- and was defense, investigate adequately failure Baugher’s performance dence that work misconduct, departures past from alleged substandard. The therefore was ALJ which tolerance of behavior for practice, disci- found RELCO’s rationales for fired, employee allegedly was and dis the terminating Baugher pre- and plining were discharged em treatment of parate texts for unlawful discrimination. Inc., One, NLRB ployees.” Medic (2000). Baugher disciplined also attacks the ALJ’s RELCO testimony than two months after his less credibility findings. determining When union and less than two weeks after the credibility are whether determinations nonparty election was held. While five evidence, af supported substantial we I, Baugher in RELCO employees testified great findings ford deference only have Newton two to ALJ and the Board and not overturn will have adversely to RELCO and to testified them unless shock the conscience. on behalf the union signed statement Assocs., NLRB, & LLC v. JHP proceeding, in that and both were termi (8th Cir.2004). 904, 911 are no There nated thereafter. them grounds disturbing for here. The carefully ALJ examined record The also found that while ALJ reaching witness demeanor his determi which Baugher had committed infractions Div., Emer nations. See Beaird-Poulan discipline (failing to justify some could son Elec. Co. v. F.2d forgetting a hard hat and his blue wear Cir.1981). (8th Contrary RELCO’s managers these flag), embellished claim, fact the ALJ discredited Baugher’s testimony after incidents Baugher’s about the testimony some (that Baugher new allegations added did not him or flag require blue incident smoking, loitering, and unproductive) been of his the Board discredit whole pro justify suspension in order to Rather, testimony. it demonstrates fact to add bation. decision after gave review careful and tailored the ALJ itself a justifications prior misconduct is credibility to the of each witness testimo ground animus. recognized inferring for ny. Rockline, 412 REL- 969-70. See challenges finding performance explicitly review relied ALJ’s CO’s position and embellished punishment grounds denying this shifted its Baugher he it attributed to Baugher pay demanding raise and the misconduct Baugher’s in RELCO I. It admits improve performance. his work after testified Sep- initial email premised on that that Bachman’s about eventual termination Baugh- employ An tember 13 incident mentioned performance review. adverse hat, out upon wearing points a hard but it ment decision is unlawful it relies er not ac- asked for more details before previous and results from a unlawful that Crall filing report. his It claims that distinguish the new these employees on based se- (of allegations smoking, loitering, and un- niority, the ALJ noted that each was as- productivity) appeared repri- which sessed company being in the Baugher mand letter received than more stage same professional development as month later were the additional “details” Baugher: “performance plateau.” REL- sought. Crall had The ALJ had substan- CO does not employees show how the entitling reject tial evidence him to this “substantially ALJ did not consider were account. He noted that there was a seven similar” Baugher other than that then- delay week charged between the infraction reasons for vaguely termination sound sim- reprimand and the and that in the interim ilar to his. The ALJ thus no had obli- nobody spoken Baugher, despite gation to include them in comparator his the fact that alleged these violations could analysis. exposed have to monetary liabili- reasons, For these substantial evidence

ty. RELCO claims that it held off on supports the finding ALJ’s that the exces- imposing discipline employees on advice punishment sive given to Baugher for his of counsel because of the scheduled union safety violations part by was motivated in election, reprimands did issue testimony his Baugher’s RELCO I. other employees during that time. eventual termination stemmed from that objects

RELCO also to the prior discipline, ALJ’s pretextual and its nature comparator use of analysis, arguing that was additionally supported by comparator comparators the ALJ identified analysis. similarly Pope situated. See v. ESA Servs., Inc., (8th 6. Charles 406 F.3d Newton Cir. 2005). (1) argues It that employ the four Much analysis of the regarding Baugh- ees the ALJ used similarly were not situ er’s reinstatement supports the Board’s they ated because seniority had less than decision in Newton’s case as well. REL- (2) Baugher Newton, the CO was aware of activities, union Newton’s “cherry picked”

ALJ comparator class both from his testimony at I RELCO and because it did not include two other em his status as an during observer the elec- ployees who were unspeci dismissed for tion. agreed While the ALJ Baugher “poor performance” fied or lack of needed infractions, had committed some he was skills. skeptical that Newton had committed

The record indicates however that violations at all. He noted that the comparator evidence was valid. The “sim- evidence of alleged Newton’s lack pro- ilarly situated inquiry co-worker is a ductivity was when he walked around the search for a substantially similar employ- shop primarily at the recommendation of ee, not USA, for a clone.” Ridout v. JBS his supervisor, own who then warned him LLC, (8th Cir.2013) 716 F.3d being he was “watched.” RELCO (quoting Chaney v. Healthcare asserts that what matters is not whether Plainfield Ctr., (7th Cir.2010)). 612 F.3d actually Newton was unproductive, but Baugher, Like the four ana- whether management believed lyzed by the comparators ALJ as had a that he was. The ALJ’s determination goal of becoming certified welders. Like that in all likelihood Newton being was not Baugher, none goal, achieved the unproductive but un- permitted also him to doubt Baugher, like none of the comparators was the claims of supervisors discharged. While RELCO attempts to honestly believed that produc- he was not inquiry employer’s their rationale because the un- conclude Line tive already motivation union lawful has been estab- pretext for anti animus similar Hall, Hospital, St. Joseph’s lished. 337 NLRB toward Dixon. to that exhibited See (2001).- hand, the other On activity that Pace and prompted Renfrew’s identify able RELCO was never unprotected termination was by the un- having incident of Newton been single NLRA, then actions legal RELCO’s were than that event productive other isolated party because no asserts that RELCO’s elected him in March after it to terminate motive pretext any stated was a for other it never 2011. RELCO admits that potentially protected activity. unpro- to see if Newton had been checked RELCO asserts that this mixed was a perform- after his December 2010 ductive Wright case requiring analy motive Line ance review. Newton also had no other sis, disagrees. Board In cases his disciplinary marks on record and cites, Episcopal-Pres St. Luke’s following perform- feedback his positive NLRB, Hosps. byterian v. F.3d 575 suggestion ance review. The that Newton (8th Cir.2001), College, Carleton for failure obtain a was terminated NLRB, Finishing and NMC v. welding particularly is certificate dubious. (8th Cir.1996), 101 F.3d 528 our court con respect Baugh- As above with discussed challenged that the activity cluded was not er, comparator had no who not been en- protected by 7. We proceeded Section activity in gaged protected terminated was apply Wright nonetheless to Line because despite failing welding obtain a certifi- the termination have might actually been jobs More none importantly, cate. of the part by protected motivated in other ac on after Newton worked his December by activity tions If the employee. performance welding. review involved protected Pace and Renfrew was under thus supports Substantial evidence statute, contrast, by there would be no rationale Board’s decision RELCO’s dispute employer’s about the motivation pretext his was a could for termination apply no Wright and thus need to Line. Berbiglia, therefore discredited. See (8th example, College Inc. For in an em- Carleton Cir.1979). not ployee had received contract exten- being

sion after rude insubordinate Richard Pace and Nicholas during meeting employ- about future Renfrew 1077. We ment. F.3d at held Pace and Renfrew were both terminated protect- this insubordinate conduct was not allegedly ru- spreading for “malicious at 1080-81. At that by ed NLRA. Id. mor” their coworker Chris Kendall Wright point, very Line became relevant party had been terminated. Neither dis- in employee engaged because the had also putes this was the actual reason for actions, labor and his termi- protected Pace and Renfrew’s terminations or that might actually nation been motivated have pretext á some rationale. was other by those part in earlier activities. See id. question The critical Pace and whether If allegedly at 1080. insubordinate question Renfrew’s statements this activity protected, Wright had itself been protected under activity” “concerted analysis not have been neces- Line would 7 of Section the NLRA. See 29 U.'S.C. sary. § 157. If the motiva- employer’s admitted NLRA, dispute amounts In this case is no tion to a violation there engage Wright discharged there is no Pace and Renfrew be- need to they spoken cause had about the rumor more than that. The discussion about that Kendall had been fired. RELCO’s Kendall’s provoked termination worries argument main is that their speech company that the preparing for mass layoffs been “concerted action” under Section popular or that even productive Wright 7 of the NLRA. Line would not be like Kendall could be eliminated implicated the Board was correct in by overstrict interpretations compa- of the holding that Pace and Renfrew ny’s workplace policies. were en- gaged protected concerted action The evidence indicates that talking possible about Kendall’s termi- incipient concerted action employ If speech nation. protected, dissipated ees once learned that Ken admitted RELCO’s motivation was unlaw- dall had not been discharged. Nonethe ful. If RELCO is correct their less, the NLRA protects conversations speech action, was not concerted then the which precursors are preparation or for terminations were lawful because the group action on employees. Mey behalf of argued Board has not that RELCO’s ratio- II, ers 281 NLRB at 887. Conversations pretext nale was a any for other unlawful employees between individual are often an motivation. “indispensable preliminary step employ Action is “concerted” when it is “en- self-organization.” ee disposi Id. Nor is it gaged in with or on authority the of other tive that the concerted action in this case employees, solely and not by and on behalf never materialized because it turned out I, of employee the Meyers himself.” 268 Kendall had not been terminated. In Pa NLRB at 497. This activity includes seek- Int’l, LLC, 82, rexel 356 NLRB No. 2011 ing “to initiate or to induce or to prepare 288784, (Jan. WL 2011 NLRB LEXIS 25 group II, action.” Meyers 281 NLRB 28, 2011), company terminated an em at 887. The Board’s reasonable determi- ployee who had been inquiring wage about nation scope about the of 7 Section is disparities about which she had been mis entitled “considerable informed, deference.” but before she was able to con NLRB City Disposal Inc., v. Systems, 465 verse with employees. her fellow 822, 829, 1505, U.S. 104 S.Ct. 79 L.Ed.2d The NLRB found that such a “preemptive (1984). 839 *2, strike” still violated the NLRA. Id. at 2011 NLRB LEXIS 25 at *6. This was so determination, The ALJ’s though even presumably no concerted ac adopted by Board, activity that the actually tion would have materialized once Pace and Renfrew was “concerted” was employee alleged found out the wage Repeated reasonable. conversations about disparity Pace, Renfrew, did not exist. the effect of a company decision on other many others pur discussed Kendall’s qualifies workers as activity, concerted ported termination expressed concern employee cannot be terminated for en that it signified a dramatic shift in REL- gaging in such conversations. NLRB v. CO’s treatment of its workers. Their con Sencore, Inc., (8th 433, 558 F.2d 434 Cir. cerns assuaged were then when 1977) curiam). (per An agreement overt learned that fired, Kendall had not been required support a finding of con but this satisfactory resolution does not certed action. Whittaker Corp., 289 employees mean that had not been (1988). 933, NLRB While “grip mere preparing engage in concerted action. ing” is not protected by NLRA, JCR Hotel, 840, reasonably ALJ Finally, RELCO asserts could found here that these had done terminate Pace and Renfrew because their The Board’s order to rescind not true. Under labor statements were nondisclosure agreement law, supported area of concerted activi ‘“within the Requiring substantial evidence. ties, employee state and inaccurate false publicly may help to disavow it remedy - long they are so protected ments are agree some of the effect that the chilling Club, Country not malicious.” Wabeek ment had on employees. its While REL- (1991). While RELCO NLRB asserts can take CO the court its Pace and Renfrew’s state characterized agreement “admission” in its brief that the is, “malicious,” that made with ments as evidence, has been withdrawn as see Post their knowledge of falsehood either actual script Enterprises Bridgeton, disregard for their veraci or with reckless (8th Cir.1990), the Board had ty, Plant Guard see Linn v. United Work reason not at its to take RELCO word America, lli, Local 62- ers U.S. given findings emphatic ALJ’s (1966), 657, 15 L.Ed.2d 582 86 S.Ct. company repeatedly engaged duplicitous supporting there no such a evidence misrepresentations assertions over evidence to con finding. Substantial disputes. course of labor In these such that, many trary wofkers in the indicates requiring that circumstances the order honestly believed that Ken plant nondisclosure agreement be withdrawn Pace dall been fired. Both and Ren- and disavowed is not moot. stopped spreading frew once rumor untrue, they it found out was and Renfrew F. Conclusion arrest actively attempted spread. its We that the conclude NLRB’s decisions assuming honestly Even that RELCO be supported by were substantial in evidence lieved Pace and Renfrew had that behaved respects. all turn next to We RELCO’s maliciously, subjective belief is irrele challenge the composition board’s its were, actually vant unless the two workers authority to at issue in reach the decisions guilty alleged during misconduct of the this case. their concerted activities. protected Sims, at 379 U.S. 85 S.Ct. Burnup & II. 171.

After' this briefing appeal sub- mitted, Appeals United States Court agreement 8. The nondisclosure January for D.C. ruled on Circuit upon final the Board issue ruled in Noel Canning agreement related to nondisclosure (D.C.Cir.2013), appoint- three July 2010. RELCO circulated The ALJ ments to were invalid the NLRB under facially agreement found the violated the the recess clause of U.S. appointments workers from by barring speaking NLRA Constitution. This clause enables the ongoing dispute. about an labor vendors President “to all up may fill Vacancies not defend the RELCO does nondisclosure Senate,” of the happen during the Recess Const, agreement, it contends that the issue II, 2,§ el. 3. The U.S. art. Noel voluntarily is it moot because withdrew Canning panel that the issue of decided observed, however, agreement. The ALJ quorum had a was an whether NLRB was no admitted evidence estab- justi- there “extraordinary circumstance” which agree- this and in event the lishing hearing clause chal- appointments fied chilling lenge, ment had a on the worker’s even not been raised effect if it had below. activity. Id. at 497. concerted U.S. —, that “the

The court concluded Recess” 133 S.Ct. 186 L.Ed.2d 908 (2013). applies referred to the Constitution (that is, to intersession recesses recesses 28(j) RELCO filed a Rule letter these which two sessions of occur between Con- February seeking cases on 506-07, gress), id. at defined the a similar challenge raise to the Board’s “arise,” “happen” to mean id. at 508.7 word composition. Though RELCO did not raise appoint- It then concluded that the recess the issue before the or in NLRB its brief- only allows the ments clause President case, ing in this argues it now that we appointments during make an inter- such deny should application the NLRB’s Senate, session recess of the for vacancies enforcement because the Board lacked during which re- arose intersession quorum lawful at the time. Decisions have cess. Id. at 514. Since President Barack been rendered in the matters now before appointments Obama’s three recess to the court, however, our requested sup- and we NLRB during were made intrasession plemental briefing on four issues: fill recess and were not made to vacancies 1) Whether challenge recess, during

which arose an intersession quorum jurisdictional? NLRB’s panel the D.C. Circuit concluded 2) jurisdictional, If it is not did RELCO quo- invalid and that the NLRB lacked waive the issue? rum at the time of its decision in this case. 3) waived, If it was should we nonethe- Id. less decide the issue? This decision created a circuit split. 4) Assuming issue, we can decide the already The Eleventh Circuit had affirmed were the appointments to the NLRB validity of appointments. similar recess validly made in accordance with the (11th Stephens, Evans v. 387 F.3d 1220 Appointments Recess Clause? Cir.2004) (en banc). See also United turn, We address these issues in but first (9th Woodley, States v. 751 F.2d 1008 Cir. provide background some additional on the 1985) (en banc); Allocco, United States appointments recess at issue. (2d Cir.1962) (rejecting only F.2d 704 A. argument vacancy that the must have recess). during arisen Following statute, oral by The NLRB has five members argument in the RELCO cases before our of required which three are to maintain a court, panel majorities quorum. on the Third and New Process Steel v. 674, 2635, Fourth Circuits 2645, also ruled the recess U.S. 130 S.Ct. 177 L.Ed.2d (2010). appointments of the members of the appointments Presidential unconstitutional, NLRB were albeit based typically NLRB are made “with the on slightly different NLRB Senate,” rationales. v. Advice and Consent of the U.S. Rehabilitation, New Nursing II, 2, 2, § Vista Const. art. cl. but the President (3d Cir.2013); 719 F.3d 203 NLRB v. En possesses also power up “to fill all Se., LLC, 609, ter. Leasing Co. may happen during Vacancies the Re (4th 2013). 17, July Senate,” WL 3722388 Cir. II, cess of the U.S. Const. art. Supreme 2, The granted § Court certiorari in cl. 3. At the time of the NLRB’s — Canning cases, Noel to resolve this conflict. decision in appointees these three Judge 7. Griffith caney only "happens” during concurred in the conclu- of the recess sion that the constitutional term "the recess” Senate it arises at that time. Id. at 515 (Griffith, J., refers to a concurring part intersession recess. He would not in and concur- question have ring judgment). reached the of a va- whether in the appointments every the Board were “recess” shall assemble at least once in year, 4, by January meeting made President Obama on begin such shall at noon on Block filled a seat that day January, 2012: Sharon the 3d of unless shall 2012; 3, January vacant on Ter become law appoint day.”). different Flynn filled a seat that had become ence The Senate in ways. recesses one of two 27, 2010; August on and Richard vacant adjournment An sine die terminates a leg- Griffin, a seat that had become va filled Robert, islative Henry session. Robert’s 27, August cant on 109-10, (1877), Rules Order 169-70 cre- appoint- At the time of these recess ating what is known as an intersession 4, 2013, January on ments Senate was gap recess —a between two sessions of meeting “pro every in forma” sessions Congress. adjourns When the Senate to a 20, days three business from December particular day, by contrast, it has made an 23, through January pro 2012. These recess, activity intrasession or a break in forma sessions were held because Article within a single Congress. session of Con- I, 5,§ prevents cl. of the Constitution gress had no intersession during recess “adjourning] from for more Senate Congress, the 112th because as soon as it days” than three without the con- House’s adjourned sine die end the first session (and versa). sent vice The House had January immediately reconvened to adjourn declined to allow the Senate to Thus,' begin the second session. the recess days, part more than three because appointments at issue in this case were Republicans some House believed it would during made the Senate’s intrasession re- prevent from making President cess. appointments.

recess See Letter from April NLRB issued its decisions in Rep. Landry, Jeff Repre- U.S. House of petitioned 2012. RELCO for review of sentatives, Boehner, to Rep. Speaker John rulings May these and June of (June 2011) the House (collecting applied the NLRB cross for enforcement signatures seventy Representa- seven of its order. Briefs were filed October tives). May and the ease was set on the compel- While the House believed that argument 2013 calendar.

ling pro these forma sessions meant B. “recess,” Senate was not the Senate challenge Since RELCO did not appeared disagree. Major- itself Senate composition of the NLRB either before the ity Harry Leader Reid referred to the appeal, Board or its initial briefs on Senate’s status this time as a “recess.” provide why must a reason this court 17, Cong. (daily Rec. S8783 ed. Dec. should nonetheless address the merits of 2011) (statement Reid). of Senator Sena- argument. its conten- primary RELCO’s tors were not required present, to be challenge tion is that its to our sub- goes no business was during conducted these ject jurisdiction, matter cannot which sessions, though an exception was made on by party. waived even not raised a See December payroll 23 to extend the tax cut. Astrue, (8th 975, Sipp v. general In gaveled Senate would be Cir.2011). immediately adjourned into order and then days. for another three in that unique Senate also These cases are 3, January begin subject jurisdiction met on 2012 to the sec- question of matter ond session of the 112th Congress. potentially See could be fatal to either side’s Const, (“The hand, XX Congress argument. U.S. amend. On the one RELCO ar- Second, argues that we have Board did not have gues that because chal appointments that an clause implied, members, it lacked validly appointed three jurisdictional. In Osthus lenge would be its de- jurisdiction to issue subject matter (8th Corp., 639 F.3d 841 Cir. v. Whitesell hand, other the NLRA cision. On 2011), challenge a to the we considered requirement an exhaustion contains authority to delegation of its NLRB’s ju- reviewing court of generally divests delegation ef counsel. That general arguments to hear risdiction NLRB made while the still fective when National Labor the Board. made before according to possessed quorum, 160(e). § 10(e), Act, § 29 U.S.C. Relations when the authority lapsed Whitesell bar us from jurisdictionally This would Id. at 844. quorum. Board later lost its un- argument by RELCO considering the that as a result contended Whitesell circum- “extraordinary there were less subject juris court lacked matter district stances,” jurisdic- each examine Id. We disagreed, concluding diction. We turn. tional issue in still valid even after delegation quorum have a the Board ceased to have court continued to thus district directly decided whether a have not We subject jurisdiction. matter Id. RELCO juris quorum is challenge to the NLRB’s implied that if the argues that Whitesell Court, Supreme in nature. The dictional the loss of a delegation had not survived Circuit, Circuit, Sixth the D.C. deprived it would have the re quorum, however, appoint all characterized have jurisdic viewing subject court of matter nonjurisdiction challenges ments clause tion, challenge is and that therefore its Commissioner, 501 Freytag al. See jurisdictional. did not need to Whitesell 2631, 115 L.Ed.2d S.Ct. U.S. presented address or decide the issue as (1991); Sys. v. Intercollegiate Broad. RELCO, however, by and RELCO’s ar Bd., Royalty 574 F.3d Copyright only speculative. We decline gument (D.C.Cir.2009) curiam); (per GGNSC Frey- in conflict with adopt position 405-07 Springfield v. speculation. on the tag basis (6th Cir.2013). Vista, 719 But see New RELCO, Though not raised Seeking to evade these F.3d at 210-13. ad- Third Circuit’s New Vista decision cases, arguments. two RELCO makes distinguish Frey- point dressed another First, Freytag and it asserts that both in an to char- tag Intercollegiate effort challenges ap with Intercollegiate dealt clause particular appointments acterize a not made under pointments which were jurisdictional. The New Vista challenge as is appointments clause. This recess Freytag and Intercolle- court decided true, argument no provides giate only appointments held that clause signifi why legally that distinction is nonjurisdictional when challenges “are cant. to attach the “drastic We decline 719 F.3d at 213. brought independently.” terming appoint of a recess consequences” appoint- that an It concluded contrast challenge “jurisdiction to be ments clause challenge “goes ments which direct- clause analogous to appears closely al” it when to hear a case” is ly power to the Board’s Court has al Supreme any claims which the at may brought jurisdictional omitted). nonjuris- ready decisively declared to be are not (quotation time. Id. We — Thaler, First theory, dictional. v. this however. persuaded See Gonzalez U.S. —, 641, 648, all, precedent 181 L.Ed.2d the Third Circuit 132 S.Ct. that “the over- (2012). Freytag stating postdating 619

795 authority Board to hear case Circuit- appointments [a] all of the noted that the clause jurisdictional in issue there could under the NLRA” was have invalidated not the status of the Konig, Copyright Royalty nature. NLRB v. 79 F.3d 360 Board (3d Cir.1996). review, whose decision was under inquiry The Netu Vista but also question “call into the status of Supreme every reg- limited to whether the Court’s istered copyright.” American Id. “bring discipline” stated desire to some court considered prospect this as a jurisdictional require the term would reason reject Vista, hearing the challenge, belated not Konig. New reassessment as a Thaler, jurisdictional. reason to view it as (quoting F.3d at 210-11 132 S.Ct. 648). analogue at court has no Our see no depart We reason to from give Freytag Konig, and we should its Freytag’s general rule that appointments reading. most natural clause challenges nonjurisdictional. are importantly, More the Third Circuit’s jurisdiction Since our to hear these cases analysis actually distinguish does not ei- is not impaired, we turn now to see wheth Freytag Intercollegiate. Frey- ther or In any er “extraordinary circumstances” al tag, Supreme quite explicit Court was low us to hear RELCO’s belated challenge “alleged appointment defect to the appointments. NLRB’s recess See 160(e). Trial Special Judge goes § of the to the 29 U.S.C.

validity proceeding of the Tax Court litigation.”

is the basis for this U.S. 879, 111 S.Ct. 2631. It nonetheless de- RELCO did not appointments make its challenge clined to characterize that challenge clause before the NLRB or in its jurisdictional. alleged appoint- While the appeal. initial briefs on will generally We ments clause violation would have been a argument not consider an that was not “structural defect” in the Tax pro- Court party’s made in a opening briefs and was ceeding, the of a existence structural de- only 28(j) raised in a Rule letter. Crown necessarily fect reviewing does not cause a Cork & Seal Co. v. Int’l Ass’n Machin- subject court to jurisdiction, lack matter Workers, Aerospace ists & challenge (8th Cir.2007). and it thus did not convert the n. This rule is nor- jurisdictional 897-98, into a one. Id. at mally discretionary, Freytag indicates (Scalia, J., concurring S.Ct. 2631 in that a reviewing generally permit- court part concurring judgment). in the In- (though obliged) ted not to hear a belated deed, quite the Court has been consistent appointments clause challenge. The NLRA holding invalidity that the of an agency bar, jurisdictional contains its own howev- appointment jurisdictional official’s is not a er, foreclosing judicial consideration of where, raised, timely defect even argument presented before the Board compel would a reversal. See United “extraordinary unless circumstances” are Lines, Inc., States v. L.A. Tucker 160(e). Truck present. § 29 U.S.C. See St. 33, 38, 344 U.S. 73 S.Ct. 97 L.Ed. 54 Mercy Sys. John’s Health (1952). (8th Cir.2006).

Intercollegiate squarely rejected also attempts argue RELCO first that it jurisdictional appointments appointments clause chal- did not waive its clause chal- in lenge large part such chal- lenge, only because for it raised the issue a few lenges “far-reaching would have the conse- Canning weeks after Noel was decided. quence!]” invalidating huge way swaths of that it RELCO asserts had no copyright law. 574 at 756. The anticipating relatively F.3d D.C. “the arcane constitu-

796 jurisdictional pur- question in The final led to the decision that grounds” tional “extraordinary circum- poses is whether complains that it can- Canning, and Noel hear (or permit exist which us to stances” waiving) risk to “raise not be asked 160(e). § challenge. 29 U.S.C. RELCO’s matter legal argument, no every potential extraordinary circum- argues legal support.” in lacking how novel and if the Board present stances are because Br. at 11-12. Resp. Supp. constituted, then or- properly was not automatically it void. requires a der issues would The waiver doctrine Supreme on the Court’s statement it wishes to It relies argument make each party to Cheney Lumber timely in NLRB v. appeal in a fashion preserve for California trav- patently that “if the Board has decisionmaker. See Co. original before (8th Astrue, authority” the orbit of its then F.3d eled outside Hulsey v. Cir.2010). is, legally speaking, “there no order Nothing about this case indi 385, 388, All enforce.” 327 U.S. 66 S.Ct. we should deviate from this rule. cates . (1946). necessary L.Ed. 739 This was the ratio- legal arguments of the facts by Canning, which challenge upon clause nale relied Noel appointments make an extraordinary circumstances ex- to RELCO when its case held that were available clause appointments ist that allowed the by was heard the Board. RELCO proceed notwithstanding quorum challenge included aware that the NLRB’s 160(e)’s requirement. § aware of exhaustion appointees, recess at by means those members F.3d 497-98. when and what Indeed, appointed. according to have identified two situations We legal argument has been “extraordinary circum- qualify the 1789 ratification of the available since 160(e). § In NLRB v. In- stances” under ini The fact that RELCO Constitution. Teamsters, 225 ternational Brotherhood of pursue argument tially decided not this (8th Cir.1955), F.2d 343 we indicated “novel,” “arcane,” because it viewed it as would be if the one such circumstance legal support” in is a “lacking strate “nakedly Board’s decision were void under gic consequences whose it must decision at heed the statute.” Id. 346. This would accept. “pat- that a Cheney’s admonition decision ently ... of the Board’s outside orbit” Hull, in Spiegla The decision authority automatically is unenforceable. (7th Cir.2007), re- on which RELCO at 66 S.Ct. 553. The second 327 U.S. lies, grew present out of circumstances “extraordinary . possible circumstance” In did not raise an Spiegla, party here: development when a new of fact or law argument specifically had been re- which occurs after the Board’s decision or was jected by panel a Seventh Circuit party otherwise to the unavailable appeal. earlier Id. at 964. The Seventh original hearing. See Monark Boat Co. v. to raise the issue party Circuit allowed (8th Cir.1983) intervening Supreme later because an deciding previously without (assuming panel the earlier Court decision had called extraordinary unavailable evidence created question. Id. Here con- opinion into circumstances, the new finding trast, binding precedent was no there the Board evidence still did not establish ap- which would foreclosed RELCO’s have discretion). abused its pointments challenge. clause Noel Can- extraordinary circum- Neither such ning binding itself is not on us and did not There was no circuit. exists this case. change the state of the law this stance or law which change supported by facts altered the was appellate three court . availability of decisions appointments spanning forty years. RELCO’s over See (11th noted, Stephens, Evans v. challenge. Canning clause As Noel 387 F.3d 1220 Cir.2004) (en banc) (rejecting did not alter the law in this circuit. All both the ar- gument that intrasession recesses the relevant facts and constitutional are not claus- recesses and that the filled seat must have es were known to RELCO at the time of during become vacant the recess when the hearing, its Board and it was a tactical made); appointment was United States v. part press decision on its not to what it (9th Cir.1985) Woodley, (en 751 F.2d 1008 appeared [argu- concedes to be a “novel banc) (addressing and rejecting only the lacking legal support.” ment] argument); Allocco, latter United States v. “patently Nor was the Board’s decision (2d Cir.1962) (same). 305 F.2d 704 ... authority.” outside the orbit of its argument in opposition relies on what even 388, Cheney, 327 at U.S. 66 S.Ct. 553. RELCO admits is an “arcane” constitu- Canning heavily Noel relied on Carroll argument tional accepted by any court College, Inc. v. 558 F.3d 568 until circumstances, 2013. In such (D.C.Cir.2009). case, In the latter Board’s decision obviously was not or permitted D.C. Circuit had an otherwise clearly beyond authority its such that argument waived to be heard after the “should have immediately” known that it religious college Board had ordered a lacked the authority to issue the order. engage in bargaining. collective Id. at 574; Carroll College, 558 F.3d at see also 574. The court held that the NLRB Co., NLRB v. Newton-New Haven should have known at the time of its initial (2d Cir.1974) 1038 n. 2 (waiving clearly decision that such an order was untimely an appointments challenge clause beyond authority its to act on unam- based to the NLRB because the Board at the circuit, biguous precedent. Id. Conse- time of its decision had at arguable least quently, the court considered and relied reason to practices believe that its upon argument college belated of the legal). that the beyond NLRB had acted its au- Canning justified While Noel also its thority. Of critical importance was the sta- finding of “extraordinary circumstances” college tus of the a religious institution theory on the alleged that the lack of a Amendment, protected by the First which quorum questions go “raise[s] example type was an Cheney of case very power impli of the Board to act and had in being “patently mind as ... outside separation cate fundamental powers the orbit of authority.” [the Che- Board’s] concerns,” 705 F.3d at several circuit ney, 327 at U.S. 66 S.Ct. 553. In previously courts have concluded that a College, Carroll permitted the court challenge legal composition to the of an college to make its argument that belated agency is an affirmative defense that can beyond the NLRB acted authority its be- See, be waived if it timely is not raised. cause the Board “should im- have known DBC, (Fed. e.g., In re 545 F.3d mediately college that the entitled to Cir.2008); Haven, Newton-New exemption ... from the NLRA’s collective Haven, at 1038. In Newton-New the Sec bargaining requirements.” 558 F.3d at ond Circuit considered a challenge by NLRB made a panel consisting decision court, In the cases now before our of one Board member and two staff attor contrast, validity decision, of the compo- neys. Board’s After the board’s but be sition the time of the completion company’s ap- RELCO decisions fore the of the 798 1325, Monark, this 708 F.2d at see separate ing, in a case ruled

peal, the court “extraordinary the present not case does impermissi composition panel that the us to reach required for Mgmt. Nat’l circumstances” KFC the NLRA. under ble Cir.1974). (2d therefore unpreserved argument. We this F.2d 298 497 Corp. v. decision on to disturb the Board’s to excuse decline refused The court nonetheless clause appointments basis of RELCO’s the issue. New the company’s waiver the Haven, challenge. at 1038. 506 ton-New considerations, no matter Constitutional III. “fundamental,” can be or important how emphasized: has Scalia I forfeited as Justice Board’s decisions both RELCO claims, and other “Appointments supported by Clause sub- II were and RELCO claims, have no constitutional challenge structural stantial evidence. RELCO’s Freytag, review.” special entitlement com- Labor Relations Board’s the National (Scalia, J., 111 S.Ct. 501 U.S. at it not be addressed because position should concurring in the 160(e)’s concurring part jurisdic- § by is 29 U.S.C. barred particularly principle This judgment). there- requirement. exhaustion We tional to cir- deciding whether when important for en- grant application the Board’s fore exhaus- jurisdictional explicit cumvent an petition for deny forcement and RELCO’s that which is con- like requirement tion review. NLRA. See U.S.C.

tained the SMITH, Judge, dissenting. 160(e) (“No Circuit that has not been objection § Board, member, its urged the before I dissent because conclude respectfully I by be considered agency, shall agent, or to the quorum that the Board lacked a due court, neglect the failure or unless appointments of invalidity of the recess be- objection shall be excused urge such I would follow the three of its members. circumstances.”). extraordinary cause of Canning that the recess holding in Noel clause of the Constitution appointments RELCO waived its We conclude fill President “Vacan composition permits the Board’s be- challenge to the Recess of may happen during cies raise the issue before cause it did not 160(e) (quoting at 507 § Board, Senate.” therefore U.S.C. 3). II, 2,§ art. cl. It is undis Fur- Const. considering the issue.8 U.S. bars us from appointments of three of puted ther, Board’s decision was because the during occurred the five Board members the orbit” of the “patently ... outside recesses, they be charac whether Cheney, 327 U.S. at Senate authority, Board’s intersession or intrasession re terized as nor were there new 66 S.Ct. However, undisputed is also law unavailable cesses. developments of fact or recess by filled these Board hear- vacancies original during See, Att'y century. e.g., Op. Gen. early nullify appointments 19th 8. The dissent would (1823) (A.G. Wirt) (rejecting position predated grounds "vacancies on the that the RELCO); Att'y by Op. Gen. 356 urged during periods which recess Bates), (1862) (A.G. (declaring “set the issue "happen during the filled” and thus did not previ practice” of ... the continued Since tled Recess of the Senate.” Post "acqui general attorneys general and the this ous we have concluded that waived Farrow, Senate.”); issue, In re 3 F. today. of the It is escence we do not decide this issue J.) (con 1880) (Woods, (C.C.N.D.Ga. however, posi- noteworthy, that the Board’s question been "ex cluding support question has continuous tion on this practice). by unbroken historical dating hausted]” back to the record in the historical during appointments “happen did not the discretion to hear the case and would do so “hap- Recess of the Senate” as the because the challenge of the statute words pen during” normally are used in the En- “neither disingenuous.” frivolous nor Id. The glish language.9 predated The vacancies Court also noted that challenged the periods during “goes the recess which feature of the statute validity to the of I the Tax Court proceeding filled.10 would therefore vacate the deci- is the litigation.” basis for this quorum sions of the Board which Id. lacked RELCO’s challenge to quorum existence of a duly-appointed of members.11 on the similarly Board goes very validity to the of majority The REL- declines review underlying proceeding. argument regarding validity CO’s of short, In the majority reiterated the appointments. recess It concludes questions facing our court to be those that jurisdic- challenge RELCO’s is not posed parties we to the supplemental for tional and waived because was not raised briefing. questions Those were: before the Board or in its initial briefs. I 1) agree majority with the Whether challenge RELCO’s to the quorum jurisdictional? not make a NLRB’s cognizable jurisdic- brief did argument applicable tional under the au- 2) jurisdictional, If it is not did RELCO However, thorities. I disagree that REL- waive the issue? showing CO has not made a sufficient 3) waived, If it was should we nonethe- nonjurisdictional its Appointments-Clause less decide the issue? challenge extraordinary lacks circum- 4) Assuming issue, we can decide the warranting stances discretionary review on were the appointments to the NLRB our In part. Frey tag, rejected the Court validly made accordance with the Re- the argument of the IRS Commissioner Appointments cess Clause? petitioners that the right had waived their challenge constitutionality aof sec- Based on this applicable record and the authorities, tion of the tax code. 501 at U.S. I would ques- answer these (1) (2) (3) S.Ct. 2631. The Court that it No., No., Yes., stated had tions as follows: agree 9. I with the plain language dissent in the Eleventh my of the Constitution. In case, Circuit's Evans view, which stated: congressional acquiescence to the exer- By interpreting Appointments the Recess power by cise of executive not authorized vacancy Clause to allow a President to fill a Constitution does not amend the Constitution during appoint- created one recess with an People gave to create what did not exist. The recess, during subsequent ment made we authority government limited to our federal effectively allowing are a President to side- branches, among delineating divided three step the Senate's advice-and-consent role authority specific provi- Constitutional even where the Senate is not disabled from government sions. Two branches of that can- which, fulfilling that again I note role — give governmental not collude to one of them repetition, the risk of was and still is the power People place that the did not first creating appoint- reason for a recess the Constitution. power. ment per- I do not believe that the Constitution way mits a President to frustrate in this by majority, 11. As noted the Third and separation powers careful of intended ap Fourth Circuits have held that the recess the framers. pointments of three members of NLRB (11th Cir.2004) (Barkett, J„ 387 F.3d at 1234 quorum. caused the Board to lack a See New dissenting) Rehab., 244; Nursing Vista & 719 F.3d at Se., Leasing Enter. majority Co. 722 F.3d at seems to consider “continued practice” authority ignoring sufficient WL 3722388 at *48. FLCA, America, Farm Credit Services dis- (4) respectfully I therefore No. instrumentality federally chartered sent. States; Farm Credit United federally America, PCA, a Services instrumentality of the Unit chartered States, ed Plaintiffs v. Haun; Haun; Cecil D. Michelle

Brad Joseph Haun; H. Haun; L. Carole AMER Page; OF Knis Page; SERVICES Frances K. Carol FARM CREDIT federally Individuals, in FLCA, Shirley Knisley, chartered ICA, ley; a each States; strumentality the United of Defendants America, of Farm Credit Services Page, Page; K. Joseph H. Frances federally instrumen PCA, chartered a Claimant Counter States, tality Plaintiffs of the United v. v. America, FLCA, of Farm Credit Services Haun; HAUN; D. Cecil

Brad Michelle instrumentality federally chartered a Haun; Joseph H. Haun; L. Carole States; Farm Credit of United Page; Knis Page; K. Carol Frances America, PCA, federally a Services of Individuals, Shirley Knisley, ley; each instrumentality of the Unit- chartered Defendants States, Defendants ed Counter Page, Page; K. Joseph Frances H. Haun; Shirley Haun; D. Brad Cecil Claimants- Counter Haun; Knisley; L. Michelle Carole Appellants Knisley, Haun; Claim Carol Counter v. ants-Appellants America, FLCA, of Farm Credit Services v. instrumentality federally chartered a FLCA, America, Farm of Credit Services States; Farm Credit of the United instrumentality federally chartered federally PCA, America, Services of States; Farm Credit of the United instrumentality of the Unit chartered federally America, PCA, a of Services Defendants-Appel States, ed Counter instrumentality of the Unit chartered lees States, Defendants-Appel ed Counter lees. Shirley Haun; Haun; D. Brad Cecil Haun;

Knisley; Carole Michelle 12-3077, Nos. 12-3078. Haun, L. Counter Claimants Appeals, of United States Court Eighth Circuit. America, FLCA, Farm Credit Services May 2013. Submitted: instrumentality federally chartered Aug. Filed: States; Farm Credit United federally America, PCA, a Services instrumentality of the Unit-

chartered States,

ed Counter Defendants

Case Details

Case Name: National Labor Relations Board v. RELCO Locomotives, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 20, 2013

Citation: 734 F.3d 764

Docket Number: 12-2111, 12-2203, 12-2447, 12-2503

Court Abbreviation: 8th Cir.